BVA9510407
DOCKET NO. 93-16 032 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to an increased evaluation for varicose veins
of the right leg, currently evaluated as 20 percent
disabling.
2. Entitlement to an increased evaluation for multiple shell
fragment wounds of the right leg with muscle damage (Group
XIV), currently evaluated as 10 percent disabling.
3. Entitlement to an increased evaluation for burn scars of
the right leg, currently evaluated as 10 percent disabling.
4. Entitlement to an increased (compensable) evaluation for
a lacerated wound of the left arm.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
The veteran served on active duty from October 1942 to
November 1945.
This appeal arose from a January 1992 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania. The RO denied entitlement to
increased evaluations for the disabilities at issue. The RO
affirmed the above determination in July 1992.
The case has been forwarded to the Board of Veterans' Appeals
(Board) for appellate review.
The Board observes that the representative at the RO, in his
July 1993 statement on the veteran's behalf, made a reference
to peripheral vascular disease with claudication, a non
service-connected disorder. It is not clear whether a claim
was being made for service connection for this disorder.
This matter is referred to the RO for clarification and
whatever action is deemed to be appropriate.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his varicose veins of the right
leg, multiple shell fragment wounds of the right leg, burn
scars of the right leg, and a lacerated wound of the left arm
are more disabling than currently evaluated, thereby
warranting entitlement to increased evaluations. It is
argued that a 40 percent evaluation for varicose veins of the
right leg is warranted under diagnostic code 7116 due to
reported peripheral vascular disease with probable
claudication.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against grants of increased evaluations for the disabilities
at issue.
FINDINGS OF FACT
1. Varicose veins of the right leg are productive of not
more than moderately severe impairment.
2. Multiple shell fragment wounds of the right leg are
productive of not more than moderate impairment.
3. Burn scars of the right leg comprise an area
approximating not more than 1 square foot.
4. The scar from a lacerated wound of the left arm has been
reported as not visible and is not shown to be poorly
nourished, repeatedly ulcerated, tender and painful on
examination, or productive of limitation of function of the
left arm.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 20 percent
for varicose veins of the right leg have not been met. 38
U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§
3.321(b)(1), 4.7, 4.40, 4.104, Diagnostic Code 7120 (1994).
2. The criteria for an evaluation in excess of 10 percent
for multiple shell fragment wounds of the right thigh with
muscle damage (Group XIV) have not been met. 38 U.S.C.A. §§
1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.56, 4.73,
Diagnostic Code 5314 (1994).
3. The criteria for an evaluation in excess of 10 percent
for burn scars of the right thigh have not been met. 38
U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40,
4.118, Diagnostic Code 7802 (1994).
4. The criteria for an increased (compensable) evaluation
for a lacerated wound of the left arm have not been met. 38
U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.31,
4.40, 4.118, Diagnostic Codes 7803, 7804, 7805 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that the veteran has presented
evidence of well grounded claims within the meaning of 38
U.S.C.A. § 5107(a), in that it is plausible that his service-
connected disabilities have increased in severity. The Board
is satisfied that all relevant facts have been properly
developed, and that no further assistance to the veteran is
required in order to comply with 38 U.S.C.A. § 5107(a).
In accordance with 38 C.F.R. §§ 4.1, 4.2 (1994), and
Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has
reviewed the service medical records and all other evidence
of record pertaining to the history of the veteran's varicose
veins of the right leg, multiple shell fragment wounds of the
right thigh, burn scars of the right leg, and a lacerated
wound of the left arm. The Board has found nothing in the
historical record which would lead to a conclusion that the
current evidence of record is not adequate for rating
purposes.
Moreover, the Board is of the opinion that this case presents
no evidentiary considerations which would warrant a detailed
exposition of the remote clinical histories and findings
pertaining to the disabilities at issue. Suffice it to say
that the record is replete with VA examination reports of the
disabilities at issue and RO rating determinations adjusting
the evaluations for such disabilities based on the medical
evidence of record.
Disability evaluations are based on the comparison of
clinical findings to the relevant schedular criteria. 38
U.S.C.A. § 1155. In determining the rating warranted, it is
the present level of disability that is of primary concern.
Francisco v. Brown, 7 Vet.App. 55, 58 (1994).
I. Entitlement to an increased
evaluation for varicose veins of the
right leg, currently evaluated as 20
percent disabling.
A July 1978 VA medical examination concluded in a pertinent
diagnosis of superficial varicosities of the right leg
probably resulting from burns.
In an August 1978 rating decision, the RO granted entitlement
to service connection for varicose veins of the right leg as
secondary to service-connected burn scars of the right leg.
A 10 percent evaluation was assigned.
An August 1979 medical certificate from a private physician
noted the veteran had severe varicose veins of the right
lower extremity femur down to the distal tibia-fibula of the
leg with marked distortion and sacculation.
The RO granted an increased evaluation of 20 percent for
varicose veins of the right leg when it issued a rating
decision in February 1980.
In support of his claim for increased benefits the veteran
submitted a record of his private hospitalization during
January and February 1991 for a coronary artery bypass graft.
The discharge diagnoses were peripheral vascular disease and
coronary artery disease.
A letter from the veteran's attending physician dated in
August 1991 noted the above reported surgery and that
subsequently the veteran had undergone amputation of the
second, third, and fourth toes of the left foot. There was
noted additional history of a left hemispheric infarct
secondary to complete occlusion of the left internal carotid
artery which had occurred in 1988. Currently the veteran was
ambulatory with a walker and had a functioning graft in both
lower extremities.
At a March 1992 VA examination the veteran reported that he
could not walk alone, pain in the calf of his right leg, need
to use a walker, and giving out of the right leg. On
examination were seen varicose veins in the area of the burn
scar mainly on the anterior and lateral aspects of the right
lower leg. The relevant diagnosis was varicose veins.
The veteran testified at an RO hearing held in August 1992.
He described the disabling manifestations of his right lower
extremity varicose veins.
At a September 1992 VA medical examination the veteran
complained of pain and need to use a walker. On examination
was seen tortuosity and dilatation of the lesser saphenous
vein on the right from the ankle to just below the knee. The
right calf was greater in circumference in comparison to the
left calf by one inch. There were no ulcers. The
examination diagnosis was chronic venous insufficiency of the
right lower limb.
At a November 1992 VA peripheral vascular examination the
veteran complained of calf pain which was intermittent and
exacerbated by walking. The examiner noted this sounded like
claudication of the right calf that was relieved with rest.
The veteran could walk only one-half of a block before having
to stop secondary to calf and chest pain. On examination the
right foot was pink. There was minimal calf tenderness. The
examiner diagnosed varicose veins of the right lower
extremity without evidence of venous insufficiency in this
extremity.
On file is a letter from a private physician dated in January
1993 noting the veteran had been recently discharged from
hospitalization for treatment of progressive lower extremity
ischemic disease. He was incapacitated by significant
claudication. He continued walk with a walker and was
basically totally incapacitated by ischemia.
The veteran's varicose veins of the right leg are evaluated
as 20 percent disabling under diagnostic code 7120 of the VA
Schedule for Rating Disabilities. The 20 percent evaluation
contemplates moderately severe unilateral varicose veins
involving the superficial veins above and below the knee with
varicosities of the long saphenous, ranging in size from 1 to
2 centimeters, with symptoms of pain or cramping on exertion,
with no involvement of the deep circulation. The next higher
evaluation of 50 percent requires a demonstration of severe
unilateral varicose veins involving superficial veins above
and below the knee with involvement of the long saphenous,
ranging over 2 centimeters in diameter, marked distortion and
sacculation, with edema and episodes of ulceration, with no
involvement of the deep circulation.
The VA examination reports of record do not document evidence
of severe varicose veins in the right leg. There has been no
evidence of increased impairment of the right leg due to
varicose veins. The Board observes that the private medical
evidence reported earlier and submitted by the veteran
pertaining to non service-connected peripheral vascular
disease with claudication and coronary artery disease. An
increased evaluation under diagnostic code 7116 for
intermittent claudication as was contended on appeal is not
warranted.
No question has been presented as to which of two evaluations
would more properly classify the severity of the appellant's
varicose veins of the right leg. 38 C.F.R. § 4.7. The Board
has also considered the provisions of 38 C.F.R. § 4.40.
However, any functional loss due to pain is already
contemplated in the evaluation currently in effect. Varicose
veins of the right leg have not rendered the veteran's
disability picture unusual or exceptional in nature and have
not markedly interfered with employment. They have not
required frequent inpatient care as to render impractical the
application of regular schedular standards, thereby
precluding a grant of an increased evaluation of an
extraschedular basis. 38 C.F.R. § 3.321(b)(1).
The Board observes that the appellant's varicose veins of the
right leg continue to be productive of not more than
moderately severe impairment consistent with the current 20
percent evaluation thereby permitting the conclusion that the
record does not support a grant of an increased evaluation.
38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7,
4.40, 4.104, Diagnostic Code 7120.
II. Entitlement to an increased
evaluation for multiple shell fragment
wounds of the right thigh, currently
evaluated as 10 percent disabling.
A review of the service medical records discloses that in
March 1945, the veteran sustained multiple penetrating
shrapnel wounds of the right leg and thigh. His treatment
consisted of dressing and sulfa.
The RO granted entitlement to service connection for multiple
penetrating shrapnel wounds of the right thigh with
assignment of a 10 percent evaluation when it issued a rating
decision in March 1946.
A May 1947 VA examination disclosed scars from shrapnel
wounds on the right thigh. The diagnosis was consistent with
the above finding.
A July 1978 VA medical examination noted three circular well
healed non tender scars on the inner aspect of the right mid
thigh. The diagnosis was consistent with the above findings.
Residual shell fragment wound scars of the right thigh were
noted when the veteran was examined by VA in October 1979.
A March 1992 VA examination noted there were no shell
fragment wounds visible and they were reportedly hidden by
recent surgical scars.
The veteran testified as to the disabling manifestations of
his shell fragment wounds of the right thigh at an RO hearing
held in August 1992.
A September 1992 VA medical examination noted a few small
circular scars on the inner side of the right thigh just
above the knee.
The veteran's multiple shell fragment wounds of the right
thigh are rated as 10 percent disabling under diagnostic code
5314. The 10 percent evaluation contemplates not more than
moderate damage to the anterior thigh group of muscles. The
next higher evaluation of 30 percent requires moderately
severe muscle damage. This has not been shown on
examination.
A discussion of what constitutes moderate and moderately
severe muscle damage is appropriate at this time. Moderate
disability of muscles involve through and through or deep
penetrating wounds of a relatively short track by a single
bullet or small shell or shrapnel fragment. There is absence
of the explosive effect of a high velocity missile and of
residuals of debridement or of prolonged infection. There
are entrance and (if present) exit scars linear or relatively
small and so situated as to indicate a relatively short track
of missile through muscle tissue, signs of moderate loss of
deep fascia or muscle substance or impairment of muscle
tonus, and of definite weakness or fatigue in comparative
tests. 38 C.F.R. § 4.56(b).
Moderately severe disability of muscles involve through and
through or deep penetrating wounds by a high velocity missile
of small size or a large missile of low velocity, with
debridement or with prolonged infection or with sloughing of
soft parts, with intermuscular cicratization. There are
entrance and (if present) exit scars relatively large and so
situated as to indicate the track of the missile through
important muscle groups. There are indications on palpation
of moderate loss of deep fascia, or moderate loss of muscle
substance or strength and endurance of muscle groups involved
(compared with sound side) giving positive evidence of marked
or moderately severe loss. 38 C.F.R. § 4.56(c).
The VA examinations of record have disclosed no evidence of
moderately severe muscle damage which would warrant a grant
of an increased evaluation under diagnostic code 5314. The
multiple shell fragment wounds of the right thigh are
manifested by healed scarring with no evidence of
pathological development. The Board finds no basis upon
which to predicate a grant of an increased evaluation with
application of pertinent governing criteria. 38 U.S.C.A. §§
1155, 5107; 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§
3.321(b)(1), 4.7, 4.40, 4.56, 4.73, Diagnostic Code 5314.
III. Entitlement to an increased
evaluation for burn scars of the right
leg, currently evaluated as 10 percent
disabling.
The service medical records show the veteran sustained a
second degree burn of the right lower leg, accidentally
incurred, while on bivouac in September 1943, when gasoline
used to clean buckles ignited. He was hospitalized for
treatment and released to duty in four days.
The RO granted entitlement to service connection for external
burn scars of the right leg with assignment of a 10 percent
evaluation when it issued a rating decision in March 1946.
A May 1947 VA examination noted scar tissue secondary to
burns on the external surface of the right leg extending from
the ankle to the knee and also in the right popliteal space
and upper one third posterior surface of the leg. The scars
were thin and somewhat adherent to underlying tissue. The
examiner diagnosed scars from burns of the right leg.
Residual burn scars of the entire right leg was diagnosed
when the veteran was examined by VA in July 1978 and October
1979.
A March 1992 VA examination noted a burn scar on the right
leg. The examiner noted an extensive superficial scar
extending from just above the right knee to the ankle, and on
the anterior and lateral surface.
The veteran testified as to the disabling manifestations of
his right leg burn scarring at an RO hearing held in August
1992.
A September 1992 VA examination noted a burn wound scar of
the lateral right leg from just below the knee to just above
the right ankle. The scar was not tender or attached to
underlying structures.
The veteran's burn scar of the right leg is rated as 10
percent disabling under diagnostic code 7802. The 10 percent
evaluation contemplates second degree burns involving an area
or areas approximating one square foot. The next higher
evaluation of 20 percent requires an area or areas exceeding
12 square inches. This has not been shown on examination.
The veteran's second degree burn of the right leg is
manifested by healed scarring which has not been shown to
have increased in severity or pathologically worsened on the
basis of the most recent VA examinations on file.
It is the judgment of the Board that no evidentiary basis
exists upon which to predicate a grant of an increased
evaluation with application of pertinent governing criteria.
38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7,
4.40, 4.118, Diagnostic Code 7802.
IV. Entitlement to an increased
(compensable) evaluation for a lacerated
wound of the left arm.
The service medical records show the veteran sustained a
lacerated wound of the left arm when hit by enemy shrapnel in
March 1945.
The RO granted entitlement to service connection for a
lacerated wound of the left arm with assignment of a
noncompensable evaluation when it issued a rating decision in
March 1946.
VA examinations in May 1947 and July 1978 were negative as to
any findings of a lacerated wound of the left arm.
The October 1979 VA examination noted there were no scars on
the left arm.
The March 1992 VA examination report shows that no wound was
visible on the left arm.
The veteran testified as to the severity of his combat
incurred injuries at an RO hearing held in August 1992.
The September 1992 VA examination report shows the examiner
noted the veteran was examined for wounds of the left arm and
none were found.
The veteran's lacerated wound of the left arm is evaluated as
noncompensable under diagnostic code 7805. Under diagnostic
code 7805, scarring is rated on the basis of limitation of
function of the part affected. As the lacerated wound has
not been shown to limit function of the left arm, the
disability has been evaluated as noncompensable. 38 C.F.R. §
4.31.
A 10 percent evaluation may be assigned under diagnostic code
7803 for scarring which is poorly nourished and repeatedly
ulcerated. This has not been shown on examination. A 10
percent evaluation may be assigned under diagnostic code 7804
for scarring which is tender and painful on objective
demonstration. This has not been shown on examination.
As the Board noted earlier, there has been no evidence of
even residual scarring from the lacerated wound of the left
arm reported in service. Furthermore, there is no showing of
any functional loss due to pain for application of 38 C.F.R.
§ 4.40. There is no medical basis upon which to predicate a
grant of an increased (compensable) evaluation with
application of pertinent governing criteria. 38 U.S.C.A. §§
1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.31, 4.40,
4.118, Diagnostic Codes 7803, 7804, 7805.
ORDER
Entitlement to an increased evaluation for varicose veins of
the right leg is denied.
Entitlement to an increased evaluation for multiple shell
fragment wounds of the right thigh is denied.
Entitlement to an increased evaluation for burn scars of the
right leg is denied.
Entitlement to an increased (compensable) evaluation for a
lacerated wound of the left arm is denied.
ALBERT D. TUTERA
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.